Based on a shiur by Harav
Summarized by Udi Schwartz
Most of us eat matzot that are kosher, and even exactingly so. Why should we be interested in matza that is forbidden for consumption (for example, matza from which one forgot to set aside challa or terumot and ma'asrot)? Although this issue may not arise frequently, it touches upon several fundamental principles of the laws of chametz and matza, and illuminates a number of other issues.
THE SOURCE OF THE LAW
We learn in the Mishna in Pesachim (35a):
These are the commodities with which one discharges his obligation on Pesach: with wheat, with barley, with spelt, with rye, and with oats. And they discharge it with demai, with first-tithe whose teruma has been separated, and with second-tithe or hekdesh which have been redeemed. And priests [can discharge their obligation] with challa and teruma. But [one can] not [discharge his obligation] with tevel, nor with first-tithe whose teruma has not been separated, nor with second-tithe or hekdesh which have not been redeemed. [As to] the [unleavened] loaves of the thanksgiving offering and the wafers of a Nazirite, if he made them for himself, he cannot discharge [his obligation] with them; if he made them to sell in the market, he can discharge [his obligation] with them.
The latter part of the Mishna clearly establishes that a person cannot fulfill his obligation with matza that is a forbidden food, for example, tevel, second-tithe that was not redeemed, and the like.
The Gemara there tries to clarify the rationale of the Mishna's ruling. It first notes the close connection between the prohibition of chametz and the mitzva of matza – only that which could potentially become forbidden as chametz is fit for the mitzva of matza. Of course, even flour that is tevel or second-tithe can become chametz, and so at this point, the Gemara turns to the position of
A PROHIBITION DOES NOT TAKE EFFECT WHERE ANOTHER PROHIBITION ALREADY EXISTS
It is important to note that the rule that a prohibition does not take effect where another prohibition already exists is not R. Shimon's invention. The novelty in R. Shimon's position is that a prohibition does not take effect where another prohibition already exists, even when the new one is a more inclusive prohibition (issur kolel) or a prohibition that adds (issur mosif). Let us explain these concepts.
Issur mosif means that the second prohibition expands the scope of the first prohibition. For example, if a certain food is forbidden only to Reuven by virtue of some prohibition, and now a second prohibition which would forbid the food to everybody is about to take effect – that second prohibition can take effect because it is an issur mosif. In a similar manner, an issur kolel expands not the number of individuals subject to the prohibition, but rather the number of objects governed by the prohibition. Consider, for example, the case of eating the meat of a nevela on Yom Kippur. Prior to Yom Kippur, the meat of an improperly slaughtered animal is forbidden, but the meat of a properly slaughtered animal is permitted. On Yom Kippur itself, the meat of both improperly and properly slaughtered animals is forbidden. In such a case, the issur kolel of Yom Kippur applies to additional objects, so it can take effect even where another prohibition already exists.
As stated above, R. Shimon disagrees about these two applications; according to him, a prohibition does not take effect where another prohibition already exists, even if it is an issur kolel or an issur mosif. The Gemara in the aforementioned passage cites the view of R. Shimon, because the cases under discussion here fall into the category of issur kolel. As Pesach enters, a prohibition applies not only to chametz that is untithed, but even to chametz that is properly tithed. Therefore, according to the Sages, the prohibition of chametz can take effect even on tevel, and thus it is fit to be matza. Only according to R. Shimon, who maintains that a prohibition does not take effect where another prohibition already exists even if it is an issur kolel, flour that is tevel on Erev Pesach is not fit to become chametz, and therefore it cannot be used for the fulfillment of the mitzva of eating matza.
We see, then, that the plain implication of the Mishna is that a person cannot fulfill his obligation with matza that is forbidden for consumption. But according to the Gemara this is true only according to the position of
It seems to me that a person discharges his obligation with tevel, first-tithe whose teruma has not been separated, and second-tithe and hekdesh that have not been redeemed, for Rav Sheshet established our Mishna in accordance with the position of R. Shimon. And we maintain that an issur kolel and an issur mosif take effect even where another prohibition already exists, and chametz on Pesach is an issur kolel, and also an issur mosif, for one is forbidden to derive benefit from it. Therefore, one fulfills his obligation with them.
The Ramban does not rule that lekhatchila one may use matza that is forbidden for consumption, but he does establish that bedi'avad one who has eaten such matza has fulfilled his duty, since we do not rule in accordance with the position of R. Shimon.
A MITZVA WHOSE PERFORMANCE IS MADE POSSIBLE THROUGH A TRANSGRESSION
Several Rishonim had difficulty setting aside the plain implication of the Mishna because of the Gemara, and therefore sought other solutions. Already Rashi proposes another possible explanation, this in light of what the Gemara says regarding demai. The Gemara states:
"And they discharge their obligation with demai and with first-tithe whose teruma has been separated." Demai? But it is not fit for him! Since if he wishes he can renounce his property, become a poor man, and eat demai, it is fit for him now too. For we learned: The poor man may be fed with demai and [Jewish] troops [in billets may be supplied] with demai.
Regarding the Gemara's question, "But is is not fit for him," Rashi writes:
And we say below: "With that which is forbidden on account of 'You shall not eat leavened bread with it,' alone, you discharge the obligation of matza – this excludes that which is forbidden for another reason." Alternatively: It is a mitzva the performance of which is made possible through a transgression (mitzva ha-ba'a be-avera).
Rashi was aware that there is a problem with fulfilling one's obligation with food that is forbidden for consumption, by virtue of what the Gemara will say in the continuation. Nevertheless, he argues that in this context there is liable to be a more general problem: a mitzva whose performance is made possible by a transgression.
Rashi's novel idea is echoed to some degree in the words of the Rambam (Hilkhot Chametz u-Matza 6:7):
One does not fulfill his duty if he eats matza that he is forbidden to eat, for example, matza made of tevel or of first-tithe from which tithe-teruma has not been removed, or stolen matza. The rule is as follows: If birkat ha-mazon must be said when it is eaten, one may use it to fulfill his duty; if birkat ha-mazon may not be said when it is eaten, it may not be used to fulfill one's duty.
The Rambam rules in accordance with the Mishna, but adds two points.
1) The Rambam mentions also stolen matza, which certainly does not raise the problem of a prohibition taking effect where another prohibition already exists, but only the problem of a mitzva whose performance is made possible through a transgression.
2) The Rambam draws a comparison between the mitzva of matza and birkat ha-mazon. In effect, the Rambam refers us to his ruling at the end of the first chapter of Hilkhot Berakhot:
Whoever eats forbidden food, willfully or in error – recites no blessing either before or after. For example, if one eats rabbinically-regarded tevel, or if one eats first-tithe whose teruma has not been separated, or second-tithe or hekdesh that have not been properly redeemed, he does not recite a blessing. It need not be added that no blessing is recited if one eats of a nevela or a terefa or drinks of wine of libation or the like.
Regarding this ruling, the Ra'avad comments:
Regarding this he made a great mistake. For they did not say that a blessing is not recited, but that the zimmun blessing is not recited. For they do not have the importance of a fixed meal, since they are eating forbidden food. It is like eating fruit which is not fixed eating regarding the zimmun blessing. But why should they not recite a blesing before and after? Surely they have derived benefit!
The problem with reciting a blessing over a forbidden food appears to be that of a mitzva whose performance is made possible through a transgression. This being the case, we should understand that in Hilkhot Chametz u-Matza as well the problem is that of a mitzva whose performance is made possible through a transgression.
In this context, two questions arise:
1) Is the law of a mitzva whose performance is made possible through a transgression relevant to our issue?
2) If we answer the first question in the affirmative, we must ask why did the Gemara choose not to mention the law of a mitzva whose performance is made possible through a transgression. Several Rishonim explain that priority is given to a local rule applying to the laws of chametz and matza over the general principle regarding a mitzva whose performance is made possible through a transgression. This, however, seems to be a technical and fairly arbitrary determination, and therefore it behooves us to try and find a more fundamental explanation.
WHY DID THE GEMARA NOT MENTION THE LAW OF "A MITZVA WHOSE PERFORMANCE IS MADE POSSIBLE THROUGH A TRANSGRESSION"?
The aforementioned question is raised by the Tosafot:
Nevertheless, there is a difficulty, for in chapter Kol Sha'a, it is taught in a Baraita: "One does not fulfill the obligation of matza with tevel." And this is derived from a verse. Let it be learned from [the rule regarding] a mitzva whose performance is made possible through a transgression! For he eats a forbidden food and wishes to fulfill the obligation of eating matza. (Sukka 30a)
The Tosafot propose no explanation as to why the Gemara chose to omit such a fundamental rationale.
In order to answer this question, most Rishonim restricted the scope of the law of "a mitzva whose performance is made possible through a transgression." A priori, such a restriction is possible in one of two directions:
1) not every mitzva is adversely affected when it is accompanied by a transgression;
2) not every transgression disqualifies the mitzva that it accompanies.
For our purposes, we shall focus on the first direction, that which is brought by the Ramban (Pesachim 35a) in the name of the Tosafot:
And I have also found in the Tosafot that they said that the rule regarding a mitzva whose performance is made possible through a transgression does not apply to other mitzvot, but only to a sacrifice and to a lulav, which are used for praise. For surely regarding sukka, the word "lekha" was necessary to exclude a stolen sukka (Sukka 27b), and it is not excluded on the grounds that it is a mitzva whose performance is made possible through a transgression.
The Ramban argues that, according to the Tosafot, it is only mitzvot involving praise and glorification of God that may not be accompanied by a transgression. Such mitzvot are associated with the existential and experiential aspect of Divine service, and that experience may not be tarnished by a transgression. A similar proposal arises from the Tosafot of Rabbenu Peretz (Pesachim 35b):
It may be suggested that lulav is different in that it is used to praise and laud God in order to placate Him. And so too a sacrifice, and so too [other] mitzvot that come to placate. There we exclude a mitzva whose performance is made possible through a transgression. But here, where it does not come for placation, we do not exclude anything on the grounds that it is a mitzva whose performance is made possible through a transgression.
Rabbenu Peretz does not speak of mitzvot that involve praise, but about mitzvot that involve placation. Rabbenu David also adopts the same approach, basing it upon the famous principle, according to which "the accuser must not be made an advocate." He explains that when a person comes to placate God, he may not come with hands soiled by sin.
Obviously, in order to accept the aforementioned solution, we must make two assumptions.
1) The argument in and of itself is correct, namely, that the law regarding a mitzva whose performance is made possible through a transgression is indeed limited to mitzvot involving praise or placation.
2) The mitzva of matza does not involve praise or placation, and therefore it is not governed by the law of a mitzva whose performance is made possible through a transgression.
Those who reject this solution can, of course, disagree with either one of these two assumptions. The Maharam Chalawa explicitly relates to the words of the Ramban and Rabbenu Peretz, and argues that the first assumption is wrong. According to him, the law regarding a mitzva whose performance is made possible through a transgression is not limited to mitzvot involving praise or placation.
The praise of matza
Logically speaking, it is also possible to disagree with the second assumption. While it is difficult to identify a dimension of placation in the mitzva of matza, the dimension of praise is reflected in a number of talmudic passages.
According to the plain meaning of the biblical text, one must eat on the holiday of Pesach "bread of affliction/poverty" ("lechem oni") – bread that is eaten by the poor. This designation has halakhic ramifications in that matza ashira – matza kneaded with eggs or fruit juices – may not be used for the mitzva, because it is not "the bread of the poor." The Gemara (Pesachim 115b), however, adds another dimension to the law of oni in the matza:
Shemuel said: "Bread of oni" – bread over which we recite [onin] many words.
Shemuel connects the eating of matza to the reading of the Haggada. The Haggada reaches its climax with the blessing “Asher Ge’alanu” – a blessing of praise. Hallel too is connected to the praise of God. On another level, the entire retelling of the story of the exodus from Egypt is essentially a song and praise of God for the miracles that He performed for our ancestors in those days and in our time.
Thus, Shemuel establishes that there is a close connection between the mitzva of matza and the praise and laudation of the Haggada. Based on the words of the Ramban in his Milchamot at the beginning of tractate Berakhot, R. Yosef Dov Soloveitchik zt"l explained in similar manner the position of Rabban Gamliel that whoever does not mention the Paschal sacrifice, matza and maror on the Pesach festival has not fulfilled his obligation. The simple understanding is that whoever does not mention these three things has not fulfilled the obligation to retell the story of the exodus. The Ramban, however, argues that he has not fulfilled the obligations of the Paschal sacrifice, matza and maror themselves. This only sharpens the fact that the reading of the Haggada is an inseparable part of the mitzva of matza.
Thus far, we have seen how the mitzva of matza is connected to the mitzva of Haggada. The connection, however, is in two directions: the mitzva of Haggada is also connected to the mitzva of matza. The Mekhilta says that the mitzva of Haggada does not apply during the day or already from Rosh Chodesh, but only "when matza and maror are before you." While it might be possible that we are dealing here with a sign for the proper time of reading the Haggada, it seems that we are dealing with a more fundamental explanation, according to which matza and maror are an integral part of the mitzva of Haggada. A possible application of this is the position of R. Acha bar Ya'akov (Pesachim 116b) that a blind person, who cannot see the matza or maror, is exempt also from the mitzva of Haggada. We can only understand this position if we assume that matza and maror are conditions for the fulfillment of the mitzva of Haggada.
Thus, we see that the verbal recitation of the Haggada and the eating of matza are intertwined, and therefore, it is certainly possible to argue that the mitzva of matza is a mitzva involving praise and laudation, and for this reason it may not be fulfilled through a transgression. In light of this, the solution offered by the Tosafot and Rabbenu Peretz may be rejected, and thus we are left once again with the difficulty as to why the Gemara did not mention the principle regarding a mitzva whose performance is made possible through a transgression.
 The Rishonim and Acharonim have raised the question whether, according to R. Shimon, the second prohibition does not take effect, or perhaps it takes effect, but its violation does not lead to flogging.
 It seems that there may have been room to introduce an entirely different consideration into the discussion – the positive precept of matza sets aside the negative precept of tevel. See Rabbenu David, ad loc., who enters into a thorough and comprehensive discussion of this issue. Of course, were we to invoke the principle that a positive precept sets aside a negative precept, it would be possible to permit the eating of forbidden matza even lekhatchila. This is especially true according to the understanding that in a situation of a positive precept setting aside a negative precept, the prohibition does not take effect whatsoever.
 The Ramban offers another technical solution: The law regarding a mitzva whose performance is made possible through a transgression is only by rabbinic decree, and therefore it could not have been invoked in our case. Most Rishonim, however, maintain that this law is of Torah authority (even though the source – "Offer it now to your governor" – is from Malakhi 1:8). Thus, we are once again left with our question.
 These two directions find expression in Sukka 9a. The Gemara there brings a specific verse ("You shall observe for yourself the festival of booths"), which teaches that a stolen sukka is disqualified. The Tosafot there note that this verse is superfluous and dispensable, in light of the rule regarding a mitzva whose performance is made possible through a transgression. The talmudic passage can be understood according to both directions proposed above. It may be argued that sukka is a mitzva that requires a special verse, the general principle not sufficing. Alternatively, it may be argued that the mitzva of sukka is no different than other mitzvot, but the transgression of theft is not so severe, and therefore a special verse is necessary to teach us that it too interferes with the fulfillment of the mitzva. This second understanding, however, is problematic, for the theft detracts from the physical sukka itself, the means through which one fulfills the mitzva. It seems more logical to say that the less severe transgressions are those that are not connected to the object of the mitzva, but to the person fulfilling it. For example, matza that is tevel – the tevel itself is not problematic, but rather the person is forbidden to eat from it, and this is the reason that by logical argument there would be room for leniency. The Yerushalmi (Shabbat 13:3) explicitly proposes a similar distinction – someone who fulfills a mitzva with stolen property faces the problem of a mitzva whose performance is made possible through a transgression, but someone who tears on Shabbat, thus violating a prohibition governing his person, does not face the problem of a mitzva whose performance is made possible through a transgression.
 Rabbenu David (in the aforementioned passage) explains that not only does a lulav parallel a sacrifice, but it itself is regarded as a sacrifice with respect to the placation achieved through its taking.
 A parallel model is found in the passage read when bringing first-fruits and expounded in the Haggada – the story of Arami oved avi serves as an introduction to the thanksgiving offered to God.